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1955 OK 95
287 P.2d 207
Case Number: 36445
Decided: 03/29/1955
Supreme Court of Oklahoma





¶0 1. Where in the present partition proceedings, one defendant joined in plaintiff's prayer for partition of the property involved and her attorney endorsed his name under the abbreviation "O.K." on the Journal Entry of the court's order for partition, said order or judgment did not, under the circumstances, constitute an agreed compromise or consent judgment, of which said defendant could not be heard to complain.

2. An order for partition entered as prescribed by Tit.

3. Under the circumstances existing in this case, the trial court's action in modifying the previous order for partition was not rendered erroneous by the provisions of Tit.

4. Where, under Tit.

[287 P.2d 209]

Appeal from the District Court of Carter County; Sam Sullivan, Judge.

Proceedings for the partition of five tracts of land, in which the trial court, upon trial of the defendants' motion therefor and plaintiff's motion to strike said motion, entered a judgment which (among other things) modified and vacated the previous order for partition as to the mineral rights under said tracts, and denied plaintiff's counsel's request that his attorney's fee be apportioned among the parties and taxed as costs in the action. From said judgment, plaintiff appeals. Affirmed in part and reversed in part.

H.A. Ledbetter, Ardmore, for plaintiff in error.

Ezra Dyer, Dyer & Dyer, Riddle & Riddle, and Otey, Johnson & Evans, Ardmore, for defendants in error.


¶1 This is an action, commenced by plaintiff in error, as plaintiff, for the partition of five separate tracts of land in Carter County, in which she owned various undivided fractional interests, along with defendants in error, who were named defendants in the action. All parties will hereinafter be referred to as they appeared in the trial court.

¶2 In their answer to plaintiff's petition, the defendants, Frances P. Ferguson, and others unnecessary to mention, joined in the general prayer of plaintiff's petition that the tracts be partitioned; and on June 17, 1953, there was entered in said proceedings an order for partition (as contemplated by our partition statutes,

¶3 Thereafter, the defendant Frances P. Ferguson filed in the proceedings a motion (on grounds not here necessary to mention) asking the court to modify its previous "Decree" or order for partition so as to deny partition of the mineral interests in the five tracts. Plaintiff then moved to strike this motion on the ground (among others) that the court was then without jurisdiction to modify its said previous order upon defendants' motion filed after the end of the term in which the order was entered.

¶4 After a trial and hearing of the two parties' motions, whereat both parties introduced testimony and other evidence in support of their respective positions, plaintiff's motion to strike was overruled and judgment was entered denying partition of the mineral interests in the five tracts, and vacating the "Decree" of June 17, 1953, directing partition of such interests, all in accord with written findings of fact and conclusions of law filed by the court. It was further decreed that the defendant Frances P. Ferguson should have (in accord with the parties' previous elections) plaintiff's surface interests in tracts 2, 3, and 4; that [287 P.2d 210] she and the other defendants who had elected to take it, should have plaintiff's surface interest in tract 1; and directed the Sheriff to execute and deliver to said defendants deeds to carry out said decree, upon said defendants' respective payments to plaintiff of the appraised value of her said surface interests. As to the surface rights in tract 5, the sheriff was ordered to sell them at public auction, as they could not be partitioned, and both plaintiff and defendants had elected to take them. In connection with this judgment, the court, upon plaintiff's attorney's request that it fix his attorney's fees to be paid, and, defendants' objection to any part thereof being taxed against them, concluded that each party to the action should be responsible to his or her own attorney for such fees, and ordered that none of such fees be taxed as costs or any part of one party's attorney's fees be charged against any other party to the action.

¶5 After the overruling of her motion and amended motion for a new trial, plaintiff lodged the present appeal. It is directed principally at the action of the trial court in setting aside and superseding with its final judgment, the "Judgment" or Order For Partition of June 17, 1953.

¶6 Under Proposition 2 in her briefs, plaintiff urges that the latter was a "final" judgment, and, under this court's previous interpretations and applications of

"In Bondurant v. Apperson, 61 Ky. 30, the rule is laid down that a judgment is not final that cannot be enforced to the extent of giving the final relief contemplated by it without further action by the court. This rule is sustained by the great weight of authority (Freem., Judgm., 30), and under it the order in question must be regarded as interlocutory, for plainly it gave no final relief to the parties, and contemplated further action by the court on the coming in of the commissioners' report."

¶7 A reading of our statutes on partition (especially sec. 1505-1511, both inclusive, of Tit. 12, supra) clearly shows the same contemplation described in the above quotation; and substantially the same test of the finality of orders or judgments is applied in this jurisdiction as is there cited. See

¶8 Under her Proposition 1, plaintiff argues that the "partition judgment of June 17, 1953" was binding upon defendants, because it was "agreed to by all" of them and urges that it therefore has the binding effect of "agreed", "compromise", and/or "consent" judgments, citing Greeson v. Greeson, 208 Okl. 457,

"It is true, as a general rule, that no appeal can be taken by either party from a judgment by confession, since the error, if any, is his own, and not that of the court. But this was not such a judgment. The facts stated in the petition were not disputed by the answer of the defendants, but the legal conclusions were drawn therefrom by the court. The judgment so recites."

¶9 For the foregoing reasons we have determined that the order or "Judgment" of June 17, 1953, cannot herein be considered an "agreed" or "consent" judgment; that the argument and authorities set forth under plaintiff's first proposition are inapplicable; and that the trial court did not exceed its jurisdiction in modifying the partition order of June 17, 1953, after the term in which it was entered.

¶10 Plaintiff's argument under Proposition 4 of her brief is to the effect that after the Commissioners had made their report, defendants, not having made any objections or taken any exceptions thereto within ten days thereafter, and plaintiff having filed her "Motion To Conform" the Commissioners' report, it was error for the trial court to refuse such confirmation. An examination of the record reveals that plaintiff filed no separate motion to confirm the Commissioners' report until December 7, 1953, many days after the court had undertaken the trial of the question of whether or not the "Judgment" of June 17, 1953, should be modified or vacated. However, as we have mentioned, the instrument denominated plaintiff's "Election To Take Property At Appraisement" contained a prayer for an order directing the sheriff to sell the oil and gas rights in and under tracts 1-4, inclusive, and the entire fee in tract 5, and for an order directing Frances P. Ferguson (in accord with her election) to pay her the appraised value of the surface rights to tracts 2, 3, and 4, and directing that the defendants (generally or jointly, in accord with their election) pay her the appraised value of the surface rights to tract 1. Plaintiff's filing of this election to take the same mineral interests she had elected to take and the motion for the sales and transfers above-described was apparently a turn of events the defendant Frances P. Ferguson had not anticipated and could not accede to. Plaintiff seems to be of the opinion that when these things occurred, the trial court could correctly do nothing but order the sale made and transfers to be accomplished that plaintiff prayed for. We do not agree. As pointed out in Williams v. Skinner, 195 Okl. 321,

¶11 Plaintiff's Proposition 3 (the last to consider) is as follows: "In a partition proceeding, where partition is ordered, it is error for the trial court to refuse plaintiff attorney's fees and costs." This has reference to the order the trial judge entered in connection with the judgment appealed from, wherein he denied plaintiff's attorney's request that he be allowed an attorney fee to be taxed or charged as costs against the various parties to the action. The order was based upon the court's findings that:

"* * * the proceedings have been adversary throughout and all attorneys herein have been actively engaged in the preparation of papers and proceedings in this cause and that the burden of the work has not fallen on plaintiff's attorney and that it would be inequitable and unjust to allow the attorney for the plaintiff any fees to be taxed as against the defendants in this action or to fix any fees for any attorney chargeable against any party other than the client of such attorney."

¶12 No portion of the record, nor authority, is cited in support of plaintiff's position, except sec. 1515 of our partition statutes, Tit. 12, supra, § 1501 et seq., which provides:

"The court making partition shall tax the costs, attorney's fees and expenses which may accrue in the action, and apportion the same among the parties, according to their respective interests, and may award execution therefor, as in other cases."

¶13 We think the court's order with reference to the attorneys' fees was error, in view of the fact that a portion of the property had been ordered sold and such sale had not yet occurred. Aside from the consideration that any attempted fixing of the attorneys' fees at that stage in the proceedings might have been difficult or premature, in that their further services would presumably be necessary to properly conducting such sale, and obtaining its confirmation, and the proper conveyancing of the subject thereof to the successful bidder and purchaser, if any, the attorneys' fees properly due, or to become due, or a portion thereof, should have been ordered taxed as costs against the proceeds of the impending sale. This is in accord with the interpretation given the above-quoted statute before it was adopted by our State from Kansas. See Sarbach v. Newell, 35 Kan. 180, 10 P. 529, 532, wherein it was said:

"The costs, attorney's fees, and expenses should first be paid out of the [287 P.2d 214] entire proceeds of the sale of the property, and then the parties should receive their respective shares out of the remainder of the proceeds."

¶14 As we consider that interpretation binding on this Court, Knox v. McMillan, Okl.,